Notes on Fundamental Rights During Emergency

Introduction

• Previous discussion on fundamental rights under emergency.
• Focus on Article 359 of the Indian Constitution.

Article 359 Overview

• President may temporarily suspend rights in Part III of the Constitution during a protracted crisis.
• Suspension includes stopping the right to go to court for enforcement of fundamental liberties.
• Exception: Right to life and individual liberty (Articles 20 and 21) cannot be suspended.
• Article 32 allows individuals to seek legal remedy even during emergencies.

Effects on Fundamental Rights

• Articles 358 and 359 outline the impact of National Emergency on fundamental rights.

Article 358

• Suspension of Article 19:
  • Six essential rights under Article 19 are suspended automatically during a National Emergency.
  • No separate decree from the president is necessary.
  • If emergency is due to internal unrest, fundamental rights are not immediately suspended.
  • Restoration: Article 19 rights are restored after the emergency period ends (44th Amendment Act).
  • Armed insurrection is not grounds for suspending Article 19 rights.

Article 359

• During a National Emergency, the president may suspend the ability to petition courts for enforcement of fundamental rights.
• Only rights specified in the presidential order are subject to suspension.
• Right to petition regarding Articles 20 and 21 is never suspended.
• Presidential orders require parliamentary approval post-declaration.

44th Amendment Act Changes

• Scope of Presidential Power:
  • President cannot suspend Articles 20 and 21 under Clause 1 of Article 359.
  • Laws cannot be enacted without explicitly mentioning the relation to the emergency.
  • Any law enacted without this declaration cannot be enforced.

Court Access During Emergency

• Right to approach the court under Article 32 is not automatically suspended like Article 358.
• Suspension of this right occurs only with a presidential order.

Historical Context

• Example: During the 1962 Indochina War, a presidential order was issued suspending rights to move courts concerning Articles 14, 21, and 22.
• Supreme Court recognizes the importance of detention nature (malafide or bonafide).
• Individuals can challenge detentions that infringe non-suspended rights.

Conclusion

• Understanding Articles 358 and 359, along with the implications of presidential orders, is crucial for grasping fundamental rights during emergencies.
• Importance of knowing rights that remain enforceable even during emergencies.